Exhibit 4.45
MEMORANDUM OF AGREEMENT
Dated: 14/03/2006
PAGEON SHIPPING COMPANY LIMITED of Limassol, Cyprus
Hereinafter called the Sellers, have agreed to sell, and
COMOROS SHIPPING LIMITED of Nicosia, Cyprus
Hereinafter called the Buyers, have agreed to buy
Name: M.T. VANGUARD
Classification Society/Class: DET NORSKE VERITAS
Built: 1992 By: Halla Engineering & Heavy Ind. Co. Ltd.,
Inchon, Korea
Flag: Cyprus Place of Registration: Limassol
Call Sign:P30F4 Grt/Nrt: 28223/13568
Official Number: IMO 8913605
Hereinafter called the Vessel, on the following terms and conditions:
Definitions
"Banking days" are days on which banks are open both in the country of the
currency stipulated for the Purchase Price in Clause 1 and in the place of
closing stipulated in Clause 8.
"In writing" or "written" means a letter handed over from the Sellers to the
Buyers or vice versa, a registered letter, telex, telefax or other modern form
of written communication.
"Classification Society" or "Class" means the Society referred to in line 4.
1. Purchase Price
USD 26,100,000 (United States Dollars Twenty Six million One hundred thousand
only), subject to the provisions of Clause 17.
2. Deposit
Paragraphs deleted
3. Payment (See also Clause 17)
The said Purchase Price less Sellers' Credit (as defined in Clause 17)
shall be paid free of bank charges to The Royal Bank of Scotland,
Shipping Business Centre, ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
Sort Code: 16-01-01, Swift: ▇▇▇▇▇▇▇▇, Account Key: TOPTAN-USD1, Iban:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇, Beneficiary: Top Tankers Inc.,
Correspondent Bank: American Express Bank Limited, New York - Swift
▇▇▇▇▇▇▇▇▇▇▇
on delivery of the Vessel, but not later than 3 banking days after the
Vessel is in every respect physically ready for delivery in accordance
with the terms and conditions of this Agreement and Notice of Readiness
has been given in accordance with Clause 5.
4. Inspections
a)* The Buyers have inspected and accepted the Vessel's
classification records. The Buyers have also inspected the
Vessel atlin-Yosu, S. Korea on 12th and 13th February 2006 and
have accepted the Vessel following this inspection and the
sale is outright and definite, subject only to the terms and
conditions of this Agreement.
b)* Paragraphs deleted
4 a) and 4 b) are alternatives; delete whichever is not applicable. In
the absence of deletions, alternative 4 a) to apply.
5. Notices, time and place of delivery
a) The Sellers shall keep the Buyers well informed of the
Vessel's itinerary and shall provide the Buyers with 2 days
approximate notice of the estimated time of readiness for and
of the intended place of delivery. When the Vessel is at the
place of delivery and in every respect physically ready for
delivery in accordance with this Agreement, the Sellers shall
give the Buyers a written Notice of Readiness for delivery.
b) The Vessel shall be delivered and taken over safely afloat at
a safe and accessible berth or anchorage or at high sea.
In the Seller's option. In case the Vessel be delivered with
cargo on board the Sellers shall on delivery provide a
confirmation from their P&I Club that the latter shall
continue to cover the Vessel in every respect irrespective of
the Vessel's transfer of ownership.
Expected time of delivery: Between 15th March and 30th March
2006
Date of canceling (see Clauses 5 c), 6 b) (iii) and 14): 30th
March 2006, in Buyers' option.
c) If the Sellers anticipate that, notwithstanding the exercise
of due diligence by them, the Vessel will not be ready for
delivery by the cancelling date they may notify the Buyers in
writing stating the date when they anticipate that the Vessel
will be ready for delivery and propose a new cancelling date.
Upon receipt of such notification the Buyers shall have the
option either cancelling this Agreement in accordance with
Clause 14 within 2 Banking days of receipt of the notice or of
accepting the new date as the new cancelling date. If the
Buyers have not declared their option within 2 Banking days of
receipt of the Sellers' notification or if the Buyers accept
the new date, the date proposed in the Sellers' notification
shall be deemed to be the new cancelling date and shall be
substituted for the cancelling date stipulated in line 61.
If this Agreement is maintained with the new cancelling date
all other terms and conditions hereof including those
contained in Clauses 5 a) and 5 c) shall remain unaltered and
in full force and effect. Cancellation or failure to cancel
shall be entirely without prejudice to any claim for damages
the Buyers may have under Clause 14 for the Vessel not being
ready by the original cancelling date.
d) Should the Vessel become an actual, constructive or
compromised total loss before delivery whereafter this
Agreement shall be null and void.
6. Drydocking/Divers Inspection
a)**Paragraph deleted
b)**Paragraph deleted
c) Paragraph deleted
7. Spares/bunkers, etc. (See also Clause 19)
The Sellers shall deliver the Vessel to the Buyers with everything
belonging to her on board and on shore. All spare parts and spare
equipment including spare tail-end shaft(s) and/or spare
propeller(s)/propeller blade(s), if any, belonging to the Vessel at the
time of inspection used or unused, whether on board or not shall become
the Buyers' property, but spares on order are to be excluded.
Forwarding charges, if any, shall be for the Buyers' account. The
Sellers are not required to replace spare parts including spare
tail-end shaft(s) and spare propeller(s)/propeller blade(s) which are
taken out of spare and used as replacement prior to delivery, but the
replaced items shall be the property of the Buyers. The radio
installation and navigational equipment shall be included in the sale
without extra payment. Unused stores and provisions shall be included
in the sale and be taken over by the Buyers without extra payment.
The Sellers have the right to take ashore crockery, plates, cutlery,
linen and other articles bearing the Sellers' flag or name, provided
they replace same with similar unmarked items. Library, forms, etc.,
exclusively for use in the Sellers' vessel(s), shall be excluded
without compensation. Captain's, Officers' and Crew's personal
belongings including the slop chest are to be excluded from the sale,
as well as the following additional items (including items on hire):
none.
8. Documentation (See also Clause 21)
The place of closing: Piraeus, Greece
a) - f) Paragraphs deleted
At the time of delivery the Sellers shall hand to the Buyers copies of
the classification certificate(s)as well as all other
trading/national/international certificates and plans etc., which are
on board the Vessel. Copies of other certificates which are on board
the Vessel shall also be handed over to the Buyers. Copies of other
technical documentation which may be in the Sellers' possession shall
be promptly forwarded to the Buyers at their expense, if they so
request. The Sellers will keep the Vessel's log books but the Buyers to
have the right to take copies of same.
9. Encumbrances
The Sellers warrant that the Vessel, at the time of delivery, is free
from charters other than as provided in Clause 20 (which the Sellers
warrant will not affect the smooth delivery of the Vessel hereunder
and/or under the Bareboat Charter referred into Clause 18),
encumbrances, mortgages and maritime liens or any other debts and
claims whatsoever. The Sellers hereby undertake to indemnify the Buyers
against all consequences of claims made against the Vessel and/or the
Buyers which have been incurred prior to the time of delivery.
10. Taxes, etc.
Any taxes, fees and expenses in connection with the purchase and
registration of the Buyers' title at the Vessel's Registry shall be for
the Buyers' account.
11. Condition on delivery
The Vessel with everything belonging to her shall be at the Sellers'
risk and expense until she is delivered to the Buyers, but subject to
the terms and conditions of this Agreement she shall be delivered and
taken over as she was at the time of inspection, fair wear and tear
excepted. However, the Vessel shall be delivered with her present class
fully maintained without condition/recommendation*, free of average and
damage affecting the Vessel's class, and with her classification
certificates and national certificates, as well as all other
certificates the Vessel had at the time of inspection, clean, valid and
unextended for a period of not less than 3 months from the time of
delivery without condition/recommendation' by Class or the relevant
authorities -at the time of delivery. In addition to the above and
without prejudice thereto the Sellers hereby undertake to, at their own
time and expense and not later than the Vessel's next special survey,
upgrade the coatings of all the Vessel's ballast tanks so as to bring
them up to the highest classification standards and be described by the
Class as being in "good" condition. The Sellers shall provide on
delivery a letter of undertaking to such effect.
"Inspection" in this Clause 11, shall mean the Buyers' inspection
according to Clause 4 a) or 4 b), if applicable, or the Buyers'
inspection prior to the signing of this Agreement. If the Vessel is
taken over without inspection, the date of this Agreement shall be the
relevant date.
* Notes, if any, in the surveyor's report which are accepted by
the Classification Society without condition/recommendation
are not to be taken into account.
12. Name/markings
Buyers shall be allowed to keep the name of the Vessel and any marking
on the Vessel's funnel or hull, in general.
13. Buyers' default
Should the Cash Part of the Purchase Price (as defined in Clause 17)
not be paid in accordance with Clause 3, the Sellers have the right to
cancel the Agreement, the Sellers shall be entitled to claim
compensation for their losses and for all expenses incurred together
with interest.
14. Sellers' default
Should the Sellers fail to give Notice of Readiness in accordance with
Clause 5 a) or fail to be ready to validly complete a legal transfer by
the date stipulated in line 61 the Buyers shall have the option of
cancelling this Agreement. If after Notice of Readiness has been given
but before the Buyers have taken delivery, the Vessel ceases to be
physically ready for delivery and is not made physically ready again in
every respect by the date stipulated in line 61 and new Notice of
Readiness given, the Buyers shall retain their option to cancel.
Should the Sellers fail to give Notice of Readiness by the date
stipulated in line 61 or fail to be ready to validly complete a legal
transfer as aforesaid they shall make due compensation to the Buyers
for their loss and for all expenses together with interest and whether
or not the Buyers cancel this Agreement.
15. Buyers' representatives
Paragraph deleted
16. Arbitration
a)* This Agreement shall be governed by and construed in
accordance with English law and any dispute arising out of
this Agreement shall be referred to arbitration in London in
accordance with the Arbitration Acts 1996 or any statutory
modification or re-enactment thereof for the time being in
force, one arbitrator being appointed by each party. On the
receipt by one party of the nomination in writing of the other
party's arbitrator, that party shall appoint their arbitrator
within fourteen days, failing which the decision of the single
arbitrator appointed shall apply. if two arbitrators properly
appointed shall not agree they shall appoint an umpire whose
decision shall be final.
b)* Paragraph deleted
c)* Paragraph deleted
16 a), 16 b) and 16 c) are alternatives; delete whichever is not
applicable. In the absence of deletions, alternative 16 a) to apply.
17. Sellers' Credit
a) At the time stipulated in Clause 3, the Buyers shall pay to
the Sellers part of the Purchase Price amounting to United
States Dollars Twenty Three million Four hundred Ninety
thousand (US$23,490,000), (the "Cash Part of the Purchase
Price") while the balance amounting to United States Dollars
Two million Six hundred Ten thousand (US$2,610,000) shall be
credited (the "Sellers' Credit") and shall be payable in
accordance with the terms of this Clause 17.
b) Subject to the provisions of sub-paragraph 17(c) hereinbelow,
the Sellers' Credit shall be payable to the Sellers in a
lumpsum, free of interest, immediately upon the expiration of
the Bareboat Charter (as defined in Clause 18) by effluxion of
time or the sale of the Vessel as described in Clause 22(b) of
the Bareboat Charter.
c) In the event that the Bareboat Charter be terminated because
of any of the reasons provided in Clause 28(a) of the Bareboat
Charter and/or any other reason attributable to the Sellers as
charterers under the Bareboat Charter, then upon such
termination taking place, the Purchase Price shall be
automatically reduced by an amount (such amount referred to as
"the Purchase Price Reduction Amount") which is equal to the
lesser of (i) the Sellers' Credit and (ii) the total amount of
hire that would have been paid to the Buyers under the terms
of the Bareboat Charter had the Bareboat Charter continued
uninterrupted for its full duration of five years and such
reduction shall have as a result the reduction of Sellers'
Credit by an amount equal to the Purchase Price Reduction
Amount.
As security for the payment of the Sellers' Credit, as provided
hereinabove, the Buyers shall provide the Sellers with a third priority
Preferred Mortgage over the Vessel, being subordinate to a first
priority Preferred Mortgage over the Vessel in favour of FORTIS BANK
(NEDERLAND) N.V. and a second priority Preferred Mortgage over the
Vessel in favour of ▇▇▇▇ CAPITAL INVESTMENTS B.V., as more particularly
described in the Bareboat Charter.
18. Bareboat Charter
The Sellers (as charterers) and the Buyers (as owners) have agreed to
enter into a Bareboat Charterparty (the "Bareboat Charter") in respect
of the Vessel in the form of the draft attached hereto. The parties
agree that payment for and acceptance of the Vessel by the Buyers under
this Agreement-is subject too the-simultaneous delivery to and
acceptance of the Vessel by the Sellers as charterers under the
Bareboat Charter.
19. Bunkers and Lubricants
Remaining bunkers and lubricating oils on board the Vessel at the time
of delivery hereunder shall be and remain the property of the Sellers
as bareboat charterers.
20. Sub-Charter
The Vessel is currently chartered to ▇▇▇▇▇▇ Oil Ltd. of Bermuda under a
"Shelltime 4" time charterparty dated 9 June 2004.
21. Documentation
In exchange for payment of the Cash Part of the Purchase Price, the
Sellers shall furnish the Buyers with the following original (unless
otherwise stated) delivery documents:
a. Two (2) legal Bills of Sale transferring title of ownership to
the vessel from the Sellers to the Buyers, free of all
encumbrances, mortgages, maritime liens, claims, taxes and any
other debts whatsoever, legalised;
b. Minutes of a Joint Meeting of the Board of Directors and of
the Shareholders (represented by proxy) of the Sellers
authorising/approving the Memorandum of Agreement and all the
other terms of the sale of the vessel to the Buyers, as well
as the Bareboat Charter and all documents to be executed
thereunder and hereunder, authorising the issuance of the
Power of Attorney per (d) herebelow and empowering a person or
persons to sign/execute all documents necessary for the sale
(including without limitation the ▇▇▇▇ of Sale) and the
chartering of the Vessel under the Bareboat Charter. Such
Minutes to be signed by all the Directors of the Sellers and
by the Shareholders' proxy and all their signatures to be
legalised;
c. Power of Attorney- in favour of the signatory(ies) of the ▇▇▇▇
of Sale and of all other documents required for the sale and
delivery of the Vessel to the Buyers as well as of the
Bareboat Charter and all documents to be executed thereunder
and hereunder, legalised;
d. Copies of the up-to-date Memorandum and Articles of
Association of the Sellers, certified as true by a Director of
the Sellers or their lawyer;
e. Certificate of Incumbency issued by the Sellers' Secretary,
stating the Directors of the Sellers to match those per (b)
above legalised;
f. Certificate of Good Standing of the Sellers, issued by the
competent Cyprus authority, dated not more than 20 days prior
to delivery;
g. Should any Director or Shareholder of the Sellers be a
corporate entity, duly executed proxy in favour of the person
representing same duly certified as a true copy by the
Seller's lawyers;
h. Certificate as to the Directors, Shareholders and registered
address of the Sellers' company issued by the Cyprus
Companies' Registrar and dated not more than 20 days prior to
delivery;
i. Certificate dated the date of delivery of the vessel to the
Buyers and issued by the Cyprus Ships' Registry showing the
vessel registered in the ownership of the Sellers free from
any registered encumbrances and mortgages;
j. Letter signed by a duly authorised attorney of the Sellers,
confirming and warranting that, to the best of Sellers'
knowledge, the Vessel is not blacklisted or boycotted by any
state, country, trade or organization or the United Nations.
k. Class Maintenance Certificate issued by the vessel's
Classification Society confirming that the vessel maintains
her Class without any condition/ recommendation, dated not
more than 3 running days prior to the date of delivery of the
vessel to the Buyers;
l. Certified copy of the Certificate of Registry and original,
International Tonnage Measurement Certificate of the vessel;
m. The letter referred into Clause 11.
n. The last Special Survey Report and copies of the existing
statutory certificates;
o. The Vessel's CSR together with notification to the Cypriot
Registry concerning the transfer of ownership;
p. Copies of DOC, SMC, ISSC and SSP and any other documents which
may be required by the Cypriot Registry for the purpose of
registering the Buyers' title thereto;
q. The Bareboat Charter duly executed;
r. The Management Agreements governing the technical and the
commercial management of the Vessel upon delivery thereof to
the Sellers under the Bareboat Charter, duly executed by the
managers;
s. A guarantee agreement (the "Charter Guarantee") by TOP TANKERS
INC. of the ▇▇▇▇▇▇▇▇ Islands (the "Charter Guarantor"),
guaranteeing as prime obligor and not as surety only, all the
obligations of the Sellers as charterers under the Bareboat
Charter and being otherwise in form and terms acceptable to
the Buyers;
t. Minutes of a Meeting of the Board of Directors of the Charter
Guarantor authorising the execution of the Charter Guarantee
and all documents to be executed thereunder, authorising the
issuance of the Power of Attorney per (w) herebelow and
empowering a person or persons to sign/execute all relevant
documents. Such Minutes to be signed by all the Directors of
the Charter Guarantor and all their signatures to be
legalised;
u. Power of Attorney in favour of the signatory(ies) of the
Charter Guarantee and of all other documents to be executed
thereunder, legalised;
v. Copies of the up-to-date Articles of Incorporation and By-Laws
of the Charter Guarantor, certified as true by a Director
thereof or their lawyer;
w. Certificate of Incumbency issued by the Charter Guarantor's
Secretary, stating the Directors of the Charter Guarantor to
match those per (v) above legalised;
x. Certificate of Good Standing of the Charter Guarantor, issued
by the competent ▇▇▇▇▇▇▇▇ Islands authority and dated not more
than 20 days prior to delivery;
y. The Collateral Guarantees, the assignment of sub-charters and
all other security documents as provided in Clause 32 of the
Bareboat Charter;
z. A joint Protocol of Delivery and Acceptance under this
Agreement as well as under the Bareboat Charter duly signed by
the respective parties.
aa. The inventory list referred into Clause 9 of the Bareboat
Charter in form and substance acceptable to the Buyers.
All documents should be in original form unless otherwise
stated hereinabove and should be in the English language or
accompanied by an official translation into English.
Sellers to provide Buyers with drafts of items a, b, c, e, g,
j, m, t, u, w and z for Buyers' approval prior to execution at
least three (3) days prior to delivery and with copies of all
documents duly executed and legalized (where appropriate) not
later than the date of tendering the final Notice of
Readiness, with the exception of items i, q, r, s, y and z
which will be produced on the date of delivery.
When a document is required to be legalized, the document may
be legalized either by a Cyprus Consul (when related to the
Sellers) or by a ▇▇▇▇▇▇▇▇ Islands Consul or Special agent
(when related to the Charter Guarantor) or by way of
notarization/apostille.
22. Buyers' documents
The Buyers shall furnish the Sellers with the following documents on
the date of delivery:
a. Minutes of a Meeting of the Board of Directors of the Buyers
authorising/approving the Memorandum of Agreement and all the
other terms of the purchase of the vessel from the Sellers,
the Bareboat Charter and the Third priority preferred mortgage
over the Vessel to be granted by the Buyers in favour of the
Sellers as security for the Sellers' Credit, authorising the
issuance of the Power of Attorney empowering a person or
persons to sign/execute all necessary documents. Such Minutes
to be legalised by a Cypriot Certifying Officer;
b. Original Power of Attorney to Buyers' representatives in
relation to the above mentioned transactions, legalized by a
Cypriot Certifying Officer;
c. Copy of the Buyers' Articles of Incorporation, certified as
true by a Director of the Buyers or the Buyers' lawyer.
d. Certificate of Incumbency issued by the Buyers' Secretary
stating the Directors of the Buyers.
23. Confidentiality
This Agreement shall be kept strictly private and confidential.
THE SELLERS THE BUYERS
/s/ Andria Uma /s/ Alexandra Tatagia
----------------------------- ---------------------------
Andria Uma Alexandra Tatagia
Attorney-in-fact